T.C. Summary Opinion 2005-29
UNITED STATES TAX COURT
VITTORIO KELLUM, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4928-02S. Filed March 22, 2005.
Vittorio Kellum, pro se.
Lorraine Wu, for respondent.
PANUTHOS, Chief Special Trial Judge: This case was heard
pursuant to the provisions of section 7463 of the Internal
Revenue Code in effect when the petition was filed. The decision
to be entered is not reviewable by any other court, and this
opinion should not be cited as authority. Unless otherwise
indicated, all subsequent section references are to the Internal
Revenue Code in effect at relevant times, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
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Respondent determined a deficiency in petitioner’s 1997
Federal income tax of $5,476, plus additions to tax. After
concessions by respondent, the remaining issues for decision are:
(1) Whether certain payments received by petitioner in 1997 are
excludable from gross income under section 104(a);
(2) whether petitioner is entitled to an additional charitable
contributions deduction pursuant to section 170 that was not
otherwise conceded by respondent; (3) whether petitioner is
entitled to a casualty loss deduction under section 165 stemming
from a 1997 automobile accident; (4) whether petitioner is
entitled to deduct, under section 162 or 183, various expenses
related to his insurance activity; and (5) whether petitioner is
liable for additions to tax for failure to file a timely tax
return under section 6651(a)(1) and for failure to make estimated
tax payments under section 6654(a).1
Some of the facts have been stipulated, and they are so
found. The stipulation of facts, supplemental stipulation of
facts, and the attached exhibits are incorporated by this
1
Respondent conceded prior to trial that petitioner is
entitled to the following itemized deductions: (1) Medical
expenses of $257.74; (2) personal property taxes of $1,450.11;
(3) charitable contributions of $450; (4) unreimbursed employee
business expenses of $436.75; (5) investment expenses of $513.63;
and (6) legal expenses of $1,311.25. Petitioner is also entitled
to a deduction for home mortgage interest paid of $6,809, as
reported by Temple-Island Mortgage.
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reference. At the time of filing the petition, petitioner
resided in Los Angeles, California.
Background
Petitioner did not file a Federal income tax return for
1997.2 On November 1, 2001, respondent issued to petitioner a
notice of deficiency in which respondent determined a deficiency
and additions to tax for petitioner’s 1997 tax year.
Respondent’s determination was based on information returns
received from third-party payors. The following amounts were
reported as paid to petitioner in 1997:
Payor Type of Payment Amount Paid
Compton Unified
School District Wages $27,325
Merrill Lynch et al. Stocks/bonds sale 2
Merrill Lynch et al. Stocks/bonds sale 17
Merrill Lynch et al. Stocks/bonds sale 19
Merrill Lynch et al. Stocks/bonds sale 401
Merrill Lynch et al. Stocks/bonds sale 694
Merrill Lynch et al. Dividends (ordinary) 22
Wells Fargo Bank Interest 16
American Network NEC income (nonemployee
Ins. Co. compensation) 31
Mitchell Energy Corp. Royalties 7,220
R.W. Durham NEC income (nonemployee
compensation) 1,427
Petitioner does not dispute receiving the payments reflected
above. With respect to the various proceeds from stock and bonds
sales reported by Merrill Lynch, Pierce, Fenner & Smith, Inc.,
2
Petitioner mailed to respondent a Federal income tax
return for 1997 on May 18, 2004, one day before the date of his
trial. A copy of the return was admitted at trial solely for the
purpose of assisting petitioner in developing his arguments and
claims for various deductions.
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petitioner substantiated his cost basis in the underlying
investments and respondent conceded at trial that petitioner is
entitled to a net capital loss of $771. In addition, petitioner
acknowledged receiving payments from Compton Unified School
District (Compton Unified) in the neighborhood of $27,325, but
claims that most of these payments were received as workers’
compensation benefits.
With regard to the issues for decision, we address each item
separately and, for convenience, we combine our findings of fact
and conclusions.
Discussion
In general, the Commissioner’s determinations set forth in a
notice of deficiency are presumed correct, and the taxpayer bears
the burden of showing that the determinations are in error. Rule
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Pursuant
to section 7491,3 the burden of proof as to factual matters
shifts to respondent under certain circumstances. Petitioner has
neither alleged that section 7491(a) applies nor established his
compliance with the requirements of section 7491(a)(2)(A) and (B)
to substantiate items, maintain records, and cooperate fully with
3
Sec. 7491 applies to court proceedings arising in
connection with examinations commencing after July 22, 1998.
Internal Revenue Service Restructuring and Reform Act of 1998,
Pub. L. 105-206, sec. 3001(c), 112 Stat. 727. It appears that
the examination of petitioner’s 1997 tax return commenced after
the effective date of sec. 7491.
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respondent’s reasonable requests. For similar reasons, section
6201(d) does not apply to place on respondent the burden of
producing evidence to supplement the information returns. See
McQuatters v. Commissioner, T.C. Memo. 1998-88.
A. Income From Compton Unified
Petitioner began working as a math and science teacher for
Compton Unified in September 1995. Sometime about February 15,
1996, petitioner was injured during an altercation with a student
while teaching at Whaley Middle School. Petitioner suffered a
back injury and was unable to teach his classes for the remainder
of the spring 1996 school term. Petitioner was granted
“industrial accident leave” from February 16 until June 12, 1996,
and continued to receive his full salary.
Petitioner returned to teaching in September 1996 for the
beginning of the 1996-97 school year. Due to continuing concerns
over his health, petitioner returned as a substitute teacher on a
temporary contract and was assigned to the district’s substitute
pool. Certified quarterly earnings reports prepared by Compton
Unified reflect that petitioner received a monthly salary of
$2,626.81 from January 1997 through June 1997 and $2,895.77 for
September 1997 through December 1997.4 Compton Unified’s
4
No Federal income taxes were withheld from petitioner’s
salary during this time. Compton Unified’s payroll administrator
testified that petitioner was classified as an “exempt
individual”, but did not further explain the basis for the
(continued...)
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timesheets show that petitioner reported to the substitute pool
on a continuous and regular basis in 1997. According to the
timesheets, petitioner was either at work or took sick leave
throughout taxable year 1997.
Petitioner, however, testified that his back injury
prevented him from working for Compton Unified after March 15,
1997, and that any payments he received after that date were in
the nature of workers’ compensation benefits. On April 9, 1997,
petitioner filed for workers’ compensation benefits with the
State of California, Division of Workers’ Compensation, claiming
a back injury due to “continuous physical stress and strain”
occurring between September 1996 and March 15, 1997. On May 31,
2001, a Workers’ Compensation Judge with the Workers’
Compensation Appeals Board for the State of California awarded
petitioner a permanent disability indemnity in the amount of
$18,827.50 for the period beginning January 15, 1997. There is
no evidence that petitioner received any workers’ compensation
payments from the State of California in 1997.
In addition, petitioner received disability compensation
from Southern California Risk Management Associates, Inc. (SCRMA)
in 2000. In a letter from SCRMA, dated March 30, 2000, SCRMA
stated that it was enclosing a check in the amount of $6,858 as
4
(...continued)
exemption.
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“your permanent disability benefits from 01/01/97 through
10/27/97.” It is unclear from this record whether SCRMA is
associated with petitioner’s workers’ compensation claim with the
State of California or whether it is associated with Compton
Unified’s group insurance plans.
Gross income includes all income from whatever source
derived, unless excludable by a specific provision of the
Internal Revenue Code. Sec. 61(a). One exclusion from gross
income can be found at section 104(a)(1) for “amounts received
under workmen’s compensation acts as compensation for personal
injuries or sickness”. Another exclusion can be found at section
104(a)(3) for amounts received through accident or health
insurance for personal injuries or sickness, except if such
amounts are (a) attributable to contributions by the employer
which were not includable in the gross income of the employee, or
(b) are paid by the employer. See also sec. 105(a).
Taxpayers reporting income on the cash method of accounting,
such as petitioner, must include an item of income for the
taxable year in which the item is actually or constructively
received. See sec. 451(a); see also Polone v. Commissioner, T.C.
Memo. 2003-339; Knoll v. Commissioner, T.C. Memo. 2003-277
(applying this principle in the context of a section 104 case).
The record does not support petitioner’s claim for
exclusion. Petitioner applied for workers’ compensation benefits
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with the State of California on April 9, 1997, but was not
awarded any benefits until May 31, 2001. Petitioner also was
awarded disability payments stemming from his 1997 back injury
from SCRMA, but the record shows that these payments were made in
2000. Amounts received are included in gross income for the
taxable year in which they are received. Sec. 451(a); Polone v.
Commissioner, supra; Knoll v. Commissioner, supra. Therefore,
payments received in 2000 and 2001 are not to be considered in
petitioner’s 1997 tax year.
As indicated, for taxable year 1997, certified payroll
records from Compton Unified demonstrate that petitioner reported
for duty throughout 1997 and was paid his regular salary without
any kind of special injury or illness status. Petitioner did not
present any credible evidence to prove that he did not work after
March 15, 1997.
For the reasons stated above, we sustain respondent’s
determination that petitioner must include $27,325 of wages in
gross income for 1997.
B. Charitable Contribution Deduction
Petitioner claims a deduction for charitable contributions
of $4,110 for 1997. Respondent conceded that petitioner is
entitled to a charitable contribution deduction of $450. The
parties dispute whether petitioner is entitled to a deduction in
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the amount of $3,660 for contributions to the Greater Sunrise
Baptist Church.
Section 170 allows a deduction for charitable contributions
made for religious purposes. For contributions of money,
taxpayers must maintain canceled checks, receipts from the donee
organizations showing the date and amounts of the contribution,
or other reliable written records showing the name of the donee,
date, and amount of the contribution. See sec. 1.170A-13(a)(1),
Income Tax Regs. Petitioner bears the burden of proving he is
entitled to deductions claimed. See Rule 142(a); New Colonial
Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).
Petitioner produced a photocopy of a “contribution receipt”
from the Greater Sunrise Baptist Church dated December 30, 1997,
showing contributions in 1997 of $3,660.5 The receipt was
generated by a computer word processing program and was not
printed on an official letterhead of the church. The photocopy
bears the purported signature of “Rev. A.W. Crowder” and contains
the purported stamped seal of the church. It is unclear from the
receipt whether petitioner donated the entire $3,660 on December
30, 1997, or whether petitioner made periodic donations during
5
The receipt was submitted to the Court by a posttrial
Supplemental Stipulation of Facts. Respondent objected to the
admissibility of the receipt on the ground of authenticity. We
overrule that objection and admit the receipt as we conclude that
the receipt has some probative value. See Rule 174(b).
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the year totaling $3,660. Petitioner did not present testimony
with respect to the claimed contributions.
Under certain circumstances, where a taxpayer’s records are
inadequate to substantiate a claimed deduction, we may estimate
the amount. Cohan v. Commissioner, 39 F.2d 540, 544 (2d Cir.
1930). In order for the Court to make an estimate, we must have
some basis in fact upon which an estimate can be made. Williams
v. United States, 245 F.2d 559, 560 (5th Cir. 1957); Vanicek v.
Commissioner, 85 T.C. 731, 742-743 (1985).
While we have some doubt about the reliability of the
contribution receipt and the amount of petitioner’s
contributions, we find that petitioner attended church and made
some contributions to the church in 1997. Bearing in mind that
petitioner has the burden to prove that he is entitled to the
claimed deduction, we hold that petitioner is entitled to an
additional deduction of $800 for donations to the Greater Sunrise
Baptist Church. Thus, petitioner is entitled to a total
charitable contribution deduction of $1,250 for 1997 (including
the $450 previously conceded by respondent).
C. Casualty Loss From Automobile Accident
Petitioner claims a casualty loss of $11,418 for damages
sustained to his 1992 Toyota Camry during an automobile accident
with an insured driver on March 17, 1997. Following the
accident, petitioner filed a claim with the other driver’s
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insurance company. On June 18, 1997, petitioner received a
letter from the Coast National Ins. Co., Inc., which stated that
his claim had been assigned to an adjuster and was currently
being investigated.
Section 165(a) allows a taxpayer to deduct losses that are
“sustained during the taxable year and not compensated for by
insurance or otherwise”. For an individual taxpayer, if a loss
is not incurred in connection with a taxpayer’s trade or business
or in a transaction entered into for profit, the taxpayer may
deduct the loss only if it arises from a fire, storm, shipwreck
or other casualty, or from theft. Sec. 165(c)(3). In the case
of a casualty loss, if there exists a claim for reimbursement for
which there is a reasonable prospect of recovery, no portion of
the loss may be deducted until it can be ascertained with
reasonable certainty whether or not such reimbursement will be
received. Sec. 1.165-1(d)(2)(i), Income Tax Regs.
There was no further evidence in the record regarding the
settlement of the insurance claim or the timing of any insurance
reimbursement. Since there was an insurance claim representing a
reasonable prospect of recovery in 1997, and there is no evidence
to show whether or not petitioner received any insurance
reimbursement in 1997, or in a later year, petitioner is not
entitled to a casualty loss deduction under section 165(a). See
Commissioner v. Harwick, 184 F.2d 835 (5th Cir. 1950), affg. a
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Memorandum Opinion of the Court; Radding v. Commissioner, T.C.
Memo. 1988-250; sec. 1.165-1(d)(2)(i), Income Tax Regs.
D. Business Expenses
Petitioner received nonemployee compensation of $1,427 from
R.W. Durham and $31 from American Network Ins. Co. in 1997.
Petitioner claims that he operated an insurance business under
the name of Kellum & Associates in 1997 and that the $1,458
represents gross receipts or sales reportable on a Schedule C,
Profit or Loss From Business. Petitioner claims $2,440 in
business expense deductions from his insurance activity and
submitted an assortment of receipts and credit card statements of
various expenses including car rentals, restaurant receipts for
meals, and a cell phone.
Section 162 provides that a taxpayer who is carrying on a
“trade or business” may deduct ordinary and necessary expenses
incurred in connection with the operation of the business. To be
engaged in a trade or business within the meaning of section 162,
“the taxpayer must be involved in the activity with continuity
and regularity and * * * the taxpayer’s primary purpose for
engaging in the activity must be for income or profit”.
Commissioner v. Groetzinger, 480 U.S. 23, 35 (1987). If the
taxpayer is not engaged in a trade or business under section 162,
the taxpayer may generally deduct the expenses related to an
activity “not engaged in for profit” only to the extent of the
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gross income derived from the activity for the taxable year.
Sec. 183(a) and (b)(2).
As with other deductions discussed herein, petitioner bears
the burden of proving he is entitled to claimed business
deductions. See Rule 142(a); New Colonial Ice Co. v. Helvering,
292 U.S. 435, 440 (1934). A taxpayer is required to maintain
records sufficient to substantiate deductions that he or she
claims on his or her tax return. Sec. 6001; sec. 1.6001-1(a),
Income Tax Regs. Section 274(d) provides a strict substantiation
requirement for certain expenses related to travel (including
meals and lodging while away from home), entertainment, gifts,
and certain types of property such as a passenger automobile, a
computer or peripheral equipment, or a cellular telephone or
similar telecommunication equipment.6 Under section 274(d), a
deduction is not allowed unless the taxpayer is able to
substantiate the expense by adequate records or by sufficient
evidence corroborating the taxpayer’s own statement establishing
the amount, time, place, and business purpose of the expense.
Irrespective of whether petitioner’s insurance activity
qualifies as a “trade or business” under section 162 or whether
petitioner’s expenses are deductible under section 183,
petitioner has failed to properly substantiate his claimed
6
Sec. 274(d) overrides the principle established in Cohan
v. Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930), that the
Court may estimate expenses in some circumstances.
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business expenses under section 274(d). While petitioner
submitted various rental car receipts, restaurant receipts, and
credit card statements, he has failed to introduce any evidence
to establish a business purpose for the claimed expenses.7 There
is no evidence such as calendar entries or other
contemporaneously prepared logs to substantiate that these
expenses were directly connected with petitioner’s insurance
activity. Further, the credit card statements were in
petitioner’s individual name, and not his company’s name.
Accordingly, we hold that petitioner is not entitled to deduct
expenses in connection with his insurance activity.
E. Additions to Tax
1. Section 6651(a)(1)
Section 6651(a)(1) provides an addition to tax for a failure
to file a return on or before the specified filing due date
unless it is shown that such failure is due to reasonable cause
and not due to willful neglect. Once the Commissioner meets his
initial burden of production to show that the addition to tax is
appropriate, the taxpayer bears the burden of proving his failure
to file timely the required return did not result from willful
neglect and that the failure was due to reasonable cause. Higbee
v. Commissioner, 116 T.C. 438, 447 (2001).
7
The receipts were submitted to the Court in a posttrial
supplemental stipulation of facts. Petitioner did not provide
any testimony of their business purpose at trial.
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Petitioner did not file a return for 1997. Petitioner made
no showing that his failure to file was due to reasonable cause
and not willful neglect. Respondent’s determination in regard to
the section 6651(a)(1) addition to tax is sustained.
2. Section 6654(a)
Section 6654(a) provides for an addition to tax in the case
of an underpayment of estimated tax. Once the Commissioner meets
his initial burden of production to show that the addition to tax
is appropriate, the section 6654(a) addition to tax is mandatory
unless petitioner shows that one of the statutorily provided
exceptions applies. See sec. 6654(e); Higbee v. Commissioner,
supra at 447; Grosshandler v. Commissioner, 75 T.C. 1, 20-21
(1980).
As relevant to this discussion, section 6654(e) provides two
mechanical exceptions to the applicability of the section 6654
addition to tax. First, the addition is not applicable if the
tax shown on the taxpayer’s return for the year in question (or,
if no return is filed, the taxpayer’s tax for that year), reduced
by any allowable credit for wage withholding, is less than $500.
Sec. 6654(e)(1). Second, the addition to tax is not applicable
if the taxpayer’s tax liability for the preceding taxable year
was zero. Sec. 6654(e)(2).
Petitioner did not file a 1997 return, did not have Federal
income taxes withheld from his wages, and made no estimated tax
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payments in 1997. As such, respondent has satisfied his initial
burden of production to show that the section 6654(a) addition to
tax is appropriate. The burden of proof, including the burden to
establish the applicability of any exceptions, remains on
petitioner. See Higbee v. Commissioner, supra at 446; Spurlock
v. Commissioner, T.C. Memo. 2003-248. Petitioner has not shown
that any of the statutory exceptions are applicable. The section
6654(e)(1) exception does not apply because petitioner’s tax for
1997 is greater than $500. The section 6654(e)(2) exception does
not appear to apply because his tax liability for 1996 was not
zero, as the record shows that petitioner earned wage income in
1996.
Respondent’s determination in regard to the section 6654(a)
addition to tax is sustained.
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be
entered under Rule 155.